Back
SUPREME COURT OF INDIA
21st February 1956
S.R. DAS, C.J.I., BHAGWATI AND VENKATARAMA AYYAR, JJ.
Messrs. Mela Ram and sons, Appellants
Versus
Commr. of Income-tax, Punjab, Respondent.
Civil Appeal No. 17 of 1954
Advocates Appeared
Mr. Hardyal Hardy and Mr. Sardar Singh, Advocates for Appellants; Mr. C. K. Daphtary. Solicitor-General of India (Mr. G. N. Joshi and Mr. R. H. Dhebar, Advocates, with him) for Respondent.
Held (allowing the appeal): (1) The question is whether an order dismissing an appeal presented under section 30 of the Income-tax Act, 1922, as out of time is one under section 30(2) or under section 31 of the Act. If it is the former, there is no appeal provided against it, if it is the latter, it is open to appeal under section 33 of the Act.
(2) Section 30(1) confers on the assessee a right of appeal against orders passed under the sections specified therein. Section 30(2) provides that the appeal shall ordinarily be presented within thirty days of the order of assessment, but the Appellate Assistant Commissioner may admit an appeal after the expiration of the period if he is satisfied that the appellant had sufficient cause for not presenting it within that period. Section 30(3)
1. Commissioner of Agricultural Income-tax v. Keshab Chandra maudal, (1950) S.C.R. 435 ; A.I.R. 1950 S.C. 265 relied upon. Commissioner of Income-tax v. Subba Rao, (1947) I.L.R. Mad. 167 approved.
provides that the appeal shall be in the prescribed form and shall be verified in the prescribed manner." Section 31 (1) enacts that "the Appellate Assistant Commissioner shall fix a day and place for the hearing of the appeal, and may from time to time adjourn the hearing." Section 31(3) specifies the orders that may be passed under the one or the other of the sections or the Act which are specified in section 30(1). Unless the appeal is against an order of assessment under section 23, it is provided in section 31(3) clauses (a) and (b) that in disposing of the appeal the Appellate Assistant Commissioner may (a) confirm, reduce enhance or annul the assessment, or (b) set aside the asessment and direct the Income-tax Officer to make a fresh assessment after making further enquiry as the Income-Tax Officer thinks fit. Section 33(1) exacts that,
"Any assessee objecting to an order passed by an Appellate Assistant Commissioner under section 28 or section 31 may appeal to the 4ppellate Tribunal within sixty days of the date on which such order is communicated to him."
(3) When power is granted to an authority to be exercised at his discretion, it is necessarily implicit in the grant that he may exercise it in such manner as the circumstances might warrant. And if the Appellate Assistant Commissioner has a discretion to excuse the delay, he has also a discretion in appropriate cases to decline to do so. The refusal to excuse delay is an order under section 30(2) of the Act.
(4) An appeal presented out of time is an appeal, and an order dismissing it as time-barred is one passed in appeal. Section 31 is the only provision relating to the hearing and disposal of appeals, and if an order dismissing an appeal is barred by limitation is one passed in appeal, it must fall within section 31. And as section 33 confers a right of appeal against all orders passed under section 31, it must also be appealable. The contention that in an appeal against assessment the only order that could be passed under section 31(3) (a) is one which confirms, reduces, enhances or annuls the assessment that such an order could be made only on a consideration of the merits of the appeal, and that an order dismissing it on the ground of limitation is not within the section does not hold good.1 To fall within the section it is not necessary that the order should expressly address itself to decide on the merits of the assessment and it is sufficient that the effect of the order is to confirm the assessment as when the appeal is dismissed on a preliminary point. Section 31 should be liberally construed so as to include not only orders passed on a consideration of the merits of the assessment but also orders which dispose of the appeal on preliminary issues, such as limitation and the like.2
Judgement
VENKATARAMA AYYAR, J. : The appellant is a firm carrying on business at Ludhiana in the Punjab. The Income tax Officer assessed its income for 1945-1946 at Rs. 71,186, and on 17-9-1947 a notice of demand was served on it for Rs. 29,857-6-0 on account in income-tax and super-tax.
The appellant preferred an appeal against the assessment, and it was actually received in the office of the Appellate Assistant Commissioner on 5-11-1947, It was then out of time by 19 days, but the appeal was registered as No. 86, and notice for hearing under S. 31, Income tax Act was issued for 13-12-1947, and after undergoing several adjournments, it was actually heard on 1-10-1948. For the year 1946-1947, the Income-tax Officer assessed the income of the firm at Rs. 1,09,883, and on 29-9-1947 a notice of demand was severed on it for Rs. 51,313-14-0 on account of income-tax and super-tax.
The appellant preferred an appeal against this assessment, and it was actually received in the office of the Appellate Assistant Commissioner on 5-11-1947, and it was then 7 days out of time. It was registered as No. 89, and notice for hearing under S. 31 was issued for 24-6-1948. Eventually, it was heard along with Appeal No. 86 on 1-10-1948.
2. At the hearing, the Department took the objection that the appeals were presented out of time, and were therefore liable to be dismissed. The appellant prayed for condonation of the delay on the ground that following on the partition of the country the conditions were very unsettled and that curfew order had been promulgated and was in force, that the post office did not accept registered letters and that the traffic on the Grand Trunk Road was closed, and that in view of these exceptional circumstances, it had sufficient cause for not presenting the appeals in time.
On 31-12-1948 the Appellate Assistant Commissioner passed orders in both the appeals, holding that there was not sufficient ground for condoning the delay, and rejecting them in limine. These orders were purported to be passed under S. 31 read along with S. 30(2) of the Act.
3. Against these orders, the appellant preferred appeals under S. 33 of the Act to the Appellate Tribunal, which by its order dated 4-4-1950 dismissed them on the ground that the orders of the Assistant Commissioner were in substance passed under S. 30(2) and not under S. 31 and that no appeal lay against them under S. 33. On the applications of the appellant, the Tribunal referred under S. 66(I), Income-tax Act the following question for the decision of the High Court of Punjab :
"Whether in the circumstances of the case appeals lay to the Tribunal against orders of the Appellant Assistant Commissioner dismissing the appeals against the assessments for the years 1945-1946 and 1946-1947 in limine."
The reference was heard by Khosla and Harnam Singh JJ., who held following an earlier decision of that Court in - Dewan Chand v. Commr. of Income-tax , 1952 Punj 203 (AIR V. 39) (A) that the orders of the Appellate Assistant Commissioner were under S. 30(2) and not appealable under S. 33. Certificate to appeal to this Court against this order having been refused by the High Court, the appellant applied for and obtained leave to appeal to this Court under Art. 136 of the Constitution, and that is how the appeal comes before us.
4. The provisions of the Act bearing on the question may now be referred to Section 30(1) confers on the assessee a right of appeal against orders passed under the sections specified therein. Section 30(2) provides that the appeal shall ordinarily be presented within thirty days of the order of assessment, but the Appellate Assistant Commissioner may admit an appeal after the expiration of the period if he is satisfied that the appellant had sufficient cause for not presenting it within that period. Section 30(3) provides that
"the appeal shall be in the prescribed form and shall be verified in the prescribed manner".
Section 31 (1) enacts that
"the Appellate Assistant Com
The main legal point established in the judgment is the binding effect of the settlement between the parties, the waiver of the right to seek re-employment by the workmen, and the entitlement of the ....
A lockout is justified if it is declared in response to an illegal strike or a strike that is in breach of a settlement or award.
The combination of eyewitness testimonies, recovery of the weapon used, and forensic examination results can establish guilt in criminal cases, even based on circumstantial evidence.
The conviction of an accused person under Section 27(3) of the Arms Act is not permissible in law if the accused is also charged with committing murder under Section 302 of the Indian Penal Code.
The court can enhance compensation based on the deceased's income and family dependency, and adjust the multiplier used by the Tribunal if found unjustified.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
